Henley v. State , 59 Ga. App. 595 ( 1939 )

Broyles, 0. J.,

dissenting. The averment in tbe indictment that the money, fraudulently obtained by the defendants, “was the property of J. D. Williman,” was unnecessary and mere surplusage, since it was “not descriptive of any material element of the crime, and, therefore, it was not incumbent upon tlie State to prove ity ‘This case does not come within the rule that an immaterial description of a material fact must be proved, but, place being unimportant, it was rather an instance of an. immaterial description of an immaterial fact See Hall v. State, 120 Ga. 142, 144 (47 S. E. 519).” Howell v. State, 29 Ga. App. 174 (2) (114 S. E. 717) In the crime charged in the instant case the ownership of the property obtained by the defendant was immaterial and unimportant, and the allegation in the indictment as to such ownership was “an instance of an immaterial description of an immaterial i&c.t’j/as stated by the Supreme Court in the Hall case, supra. See also, to the same effect, 31 C. J. 837, § 445; Shrouder v. State, 121 Ga. 615 (49 S. E. 702); Ager v. State, 2 Ga. App. 158 (58 S. E. 374); Dunson v. State, 25 Ga. App. 172 (2) (102 S. E. 899); Sparks v. State, 48 Ga. App. 498 (2), 503 (173 S. E. 216); Golden v. State, 45 Ga. App. 501 (165 S. E. 299); Innes v. State, 19 Ga. App. 271 (5) (91 S. E. 339); Berrien v. State, 156 Ga. 380 (6) (119 S. E. 300). Moreover, in the instant case there was no variance, as to the ownership of the property, between the allegations of the indictment and the proof, since the undisputed evidence showed that Williman was in the actual lawful possession of the property, although he was holding it merely as the agent or bailee of another. In Thomas v. State, 27 Ga. App. 38 (2) (107 S. E. 418), this court held: “Proof that certain property alleged to have been stolen was taken from the lawful possession of the person named in the indictment as the owner thereof is sufficient to support the allegation of ownership, although the legal title be in another.” See also Wimbish v. State, 89 Ga. 294 (15 S. E. 325); Bradley v. State, 2 Ga. App. 622 (2) (58 S. E. 1064); Bennett v. State, 28 Ga. App. 235 (110 S. E. 756). In the instant case, as stated in 25 Cyc.91-92, “The ostensible ownership is, however, enough to justify the description. So far as the thief [or defrauder] is concerned, he can not question the title of the apparent owner. . . The absolute “legal owner may be named as such; or any person may be named as owner who may be taken as owner so far as the thief [or defrauder] is concerned, which ordinarily includes any possessor who has an interest in the property or exercises any control or management(Italics mine.) The above-cited authorities are, in principle, controlling in this case, and the judgment should be affirmed.